Unchained Subjective Expectations

In an upcoming law review article, Orin Kerr plans to argue that the subjective expectation of privacy prong of Katz is dead. Muerte. Gone, gone, gone. I told him that wasn’t the case. It wasn’t dead. It was just sleeping. Or to be more precise, the subjective expectation of privacy prong was only honored in the breach. It was taken for granted, except when the prosecution can demonstrate that it didn’t exist. Then it was resurrected to be used against the defendant.

But as was my good fortune, Judge Richard Kopf, in the course of asking some silly questions, raises a point that goes to the heart of Orin’s issue:

Second, virtually all smart phones can be locked. That is, they cannot be opened and operated without using a code or a fingerprint scanner. Indeed, my government iPhone locks itself when no longer than five minutes has expired after the last use and may lock as early as one minute. At that point, I cannot use the device without unlocking it using a six digit code or a fingerprint scanner. (A terrible pain in the ass.)

If a digital device is easily locked and therefore protected against prying eyes when locked, there is little doubt that the owner has a reasonable expectation of privacy in the massive storage capacity of that device provided the locking mechanism is enabled. A warrant therefore would be required to search the contents of a locked cell phone no matter how one views the Fourth Amendment.

But, if the phone is not set to lock, why should a warrant be required when the owner has not taken a simple and easy step that would protect his or her privacy when out and about in an auto with his smart phone? Why is the search of this vast “open container” lawfully seized by the police, but without a warrant, unreasonable?

What perfect timing. Does not locking the phone call into question the defendant’s subjective expectation of privacy? After all, phones can be locked. Locking phones certainly demonstrates an expectation of privacy. Not locking phones, then, demonstrates the opposite, does it not?

First, to Orin. Now do you see my point about the subjective expectation of privacy only being honored in the breach? Judge Kopf raises the question to disprove the subjective expectation of privacy. It’s a benefit to the prosecution, to be used to argue that Katz’s reasonable expectation of privacy has not been met. So if your point is to get rid of it altogether, I’m with you, bro. That way, it can never be used to bite a defendant in the butt again, as that mean old Judge Kopf tries to do.

Second, as to Judge Kopf (I was only kidding about the “mean old” thing), your question could have been framed two different ways. You framed it as unlocked, meaning no subjective expectation of privacy, versus locked, meaning a subjective expectation of privacy. The alternative would be unlocked, meaning a subjective expectation of privacy because reasonable people don’t expect the cops to be rifling through their smartphones, and locked, an even stronger expectation of privacy, because it can be. Then, there are even greater protections, such as biometrics or more sophisticated locking methods, or relocking methods, or the eventual “Mission: Impossible” self-destruct method, which will certainly be an app soon.

Some might argue that leaving your front door open isn’t an invitation to the police to come in and search, a proposition that few would argue against. But then, if the front door is closed, but unlocked, it’s clearer. And if it’s locked, it’s more clear. And if it’s double, even triple locked, yet more clear. And if there is a steel door, like a bank vault, well, that’s really, really clear. But how clear does it need to be to reflect a subjective expectation of privacy?

The question can only be answered once a baseline is established. If one expects that the police have no business searching their smartphone, regardless of whether it’s off or on, locked or unlocked, then that would constitute a baseline. The addition of other impediments to search may well reflect a greater subjective expectation of privacy, but to require such a greater expectation of privacy is to make locking the phone the baseline.

My smartphone has automatic locking. It’s pretty easy to figure out how to unlock the phone, so the phone also has more challenging methods of unlocking. I don’t use them, because they’re a pain in the ass. Since I have no subjective expectation that the police will seize and search my phone, I feel no compulsion to use the most severe means of protecting my privacy. I expect my privacy to be respected even if my phone is unlocked. Not because the police can’t physically manage to get in there, but because they have no business going in there.

So my subjective expectation of privacy relies on a baseline of police keeping their prying eyes out of my smartphone, without regard to whether it’s locked or unlocked, or how impenetrable my locking may be. Am I being objectively unreasonable?

Orin may argue that my subjective expectation is “a phantom doctrine,” and if Judge Kopf accepts the premise that I’m allowed to believe that my unlocked phone is just as entitled to my subjective expectation of privacy as my phone encased in lead and steel, with sharp prongs surrounding its exterior, then perhaps it is. But since Judge Kopf asked, my subjective expectation still matters, because someone might argue that my failure to lock the phone reflects my lack of a subjective expectation of privacy; I could have locked it. I didn’t. It’s all my fault.

Post navigation

7 thoughts on “Unchained Subjective Expectations”

I might also argue that, as Justice Harlan stressed in Katz, that your actual subjective expectation of privacy in your unlocked cell phone sitting next to you in your getaway care is unreasonable. That is, “My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable'” Katz, 389 US at 361.

Ah, judge, but that’s the objective prong. What society is prepared to recognize as reasonable is a moving target, and given that search incident to arrest went from rationale-based to categorical rubric for ease of use, the new objective standard is categorically a warrant, making not only a bright line for the police, but one consistent with the original rationale of Chimel.

Had Justice Harlan been addressing a smartphone in Katz, he might have formulated his concurrence differently. But you can’t hold him to a digital world that wasn’t yet a twinkle in anyone’s eye.

Saw your comment over there. Us old guys still think in terms of the many exceptions, with inherent inconsistencies and long-forgotten rationales, when it comes to search. That’s what makes Riley significant, in that it starts anew without the burden of inane (and disastrous, from my perspective) exceptions that have long since lost their purpose. Instead, we get a chance to start fresh and make some sense.

But there will still be searches of physical items in the real world, so we can’t ignore the rules and exceptions.

SHG, I think this is an excellent opportunity to start a betting pool on the first exception to the warrant requirement that some lucky judge gets to pull out of his hat. My money’s on something about weak passwords meaning that you didn’t expect law enforcement to not be able to open up your smartphone.

Now that the Supreme have given cellphones a categorical exemption from search incident, it’s time for the forces of truth and justice to come up a backdoor. Not sure if it will be weak passwords, but then my imagination isn’t sufficiently fertile for the job of crafting constitutional exceptions.

Comments are closed.

Scott H. Greenfield

Nothing in this blog constitutes
legal advice. This is free.
Legal advice you have to pay for.EmailTwitter: @ScottGreenfield

What Do You Think?

I allow thoughtful comments, but please keep yours civil and respectful. There are rules here. I reserve the right to delete or edit any/all comments. Links are not permitted in comments and will be deleted. If you don't like the rules, comment elsewhere. Volenti non fit injuria. SHG